NLRB Proposed Change of Joint-Employer Standard

The National Labor Relations Board (the “Board”) announced today that it will publish a notice of proposed rulemaking tomorrow in the Federal Register regarding its joint employer standard. The Board indicated that its proposed rulemaking would foster “predictability, consistency and stability in the determination of joint employer status.” The Board indicated that an employer could be “found to be a joint employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner not limited and routine.” The proposed rule seeks to reverse a 2015 decision of the Labor Board in Browning- Ferris Industries, which had vastly expanded the scope of the joint employer definition and overturned decades of Board precedent in this area.

A comment period of 60 days will begin with the publication of the rule in the Federal Register. Chairman Ring and members Kaplan and Emanuel joined in proposing the new joint employer standard, while Board member Lauren McFerran dissented.